Farmer v. Florence County Sheriff's Office

Decision Date13 October 2010
Docket NumberOpinion No. 4752
PartiesJames David Farmer, Respondent/Appellant, v. Florence County Sheriff's Office, Appellant/Respondent.
CourtSouth Carolina Court of Appeals

Appeal From Florence County

J. Ernest Kinard, Jr., Circuit Court Judge

AFFIRMED IN PART AND REMANDED

James C. Rushton, III, of Florence, for Appellant/Respondent.

Patrick J. McLaughlin, of Florence, for Respondent/Appellant.

THOMAS, J.:

This is a cross-appeal of an order in a civil action for damages allegedly arising from the retention by the Florence County Sheriff's Office (the Sheriff's Office) of inventory from James David Farmer's retail business pursuant to a warrant asserting that Farmer was selling counterfeit merchandise. The trial judge ordered the Sheriff's Office to return to Farmer the seized inventory items that were not involved in any resulting criminal conviction and, based on that ruling, refused to allow Farmer to proceed on his claims for negligence, conversion, and civil conspiracy. In the primary appeal, the Sheriff's Office argues the trial judge erred in ordering the return of the contraband. In his cross-appeal, Farmer argues he should have been allowed to pursue several private causes of action for damages against the Sheriff's Office. We affirm in part and remand.

FACTS AND PROCEDURAL HISTORY

Farmer was the sole proprietor of "Top Gear Clothing," a retail business in Florence, South Carolina. On August 30, 2007, pursuant to a warrant issued the same day, agents of the Sheriff's Office initiated a raid of Top Gear Clothing, seizing Farmer's inventory of clothing, footwear, movie DVDs and music CDs.

Farmer was subsequently charged with trafficking in counterfeit goods in violation of section 39-15-1190 of the South Carolina Code (Supp. 2009) and distribution of pirated recordings in violation of sections 16-11-930 and 16-11-940 (2003). On January 23, 2008, Farmer negotiated a plea on the charge concerning the alleged distribution of pirated recordings. The charges concerning the counterfeit goods were dismissed.

By letter dated February 5, 2008, Farmer's attorney demanded that the Sheriff's Office return the clothing and footwear seized from Top Gear Clothing, noting these items were not the subject of any guilty plea. After receiving no response, counsel sent another letter on March 19, 2008, informing the Sheriff's Office he was making a "final demand" on Farmer's behalf for the return of the items referenced in the previous letter. Counsel further advised that if the items in question were not returned within ten days of the date of the letter, a lawsuit would follow.

On May 30, 2008, Farmer filed his summons and complaint in the present action against the Sheriff's Office, alleging various causes of action arising from the allegedly wrongful retention of his inventory, namely, (1) negligence per se, (2) general negligence, (3) conversion, and (4) civil conspiracy. In his prayer for relief, Farmer asserted he was entitled to actual and consequential damages, special damages, lost profits and interest, and punitive damages. In its answer, the Sheriff's Office denied Farmer was entitled to the relief he requested and also asserted (1) Farmer failed to state a cause of action upon which relief could be granted, (2) it was entitled to immunity under the South Carolina Tort Claims Act, (3) Farmer failed to exhaust his administrative remedies, and (4) Farmer's negligence exceeded its own negligence. The Sheriff's Office admitted that no forfeiture proceedings had been filed in the matter.

On June 24, 2008, Farmer moved for summary judgment, arguing (1) the Sheriff's Office had no legal basis to continue to deny him the return of his inventory and (2) he was entitled to the immediate return of his property as well as special damages. On August 20, 2008, the Sheriff's Office filed a notice and cross-motion for summary judgment. Accompanying the motion was a memorandum of law in opposition to Farmer's motion and in support of the cross-motion. In its memorandum, the Sheriff's Office argued (1) the applicable statute did not provide Farmer with a private right of action, (2) Farmer failed to avail himself of the means provided in the statute to recover his inventory, and (3) the South Carolina Tort Claims Act prevented Farmer from proceeding on his claim.

The trial judge heard both motions on September 2, 2008, and on September 26, 2008, issued the appealed order. In the order, the trial judge ruled Farmer was "entitled to the return of his inventory seized not related to his criminal convictions (i.e. clothes and shoes)" within ten days of the receipt of the order by the Sheriff's Office; however, the trial judge also cautioned Farmer that "if said items are, in fact counterfeit and he attempts to traffic such items after their return, he will, again, be subject to criminal charges." Based on this disposition of the matter, the trial judge further refused to grant a damages hearing, noting this decision was subject to the condition "that the items are returned in substantially the same condition as when seized." Acknowledging his order was "obviously a reasonable compromise," the trial judge purported to dismiss Farmer's private causes of action. He qualified this ruling, however, by suggesting Farmer should pursue redress under the South Carolina Tort Claims Act, which he did not consider in disposing of the cross-motions, and explaining that "[t]he Sheriff's Office simply cannot hold [Farmer's] property unless it is being held for use in a criminal proceeding." Both the Sheriff's Office and Farmer appeal.

ISSUES

I. Did the trial judge err in ordering the Sheriff's Office to return the confiscated items to Farmer? (Sheriff's Office appeal)

II. Did the trial judge err in holding that Farmer's remedy was limited to recovery of his property and that Farmer did not have a private right of action against the Sheriff's Office for failing to return it? (Farmer's appeal)

STANDARD OF REVIEW

Both the primary appeal and the cross-appeal involve the interpretation of sections 39-15-1190 and 39-15-1195 of the South Carolina Code (Supp. 2009), which prohibit the sale of counterfeit goods, state the penalties for this offense, and set procedures for the seizure of counterfeit goods and institution of forfeiture proceedings by law enforcement agencies. Furthermore, although the matter came before the trial court on cross-motions for summary judgment, the facts are not in dispute; therefore, both issues to be decided in this appeal are to be reviewed de novo. SeeTown of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008) ("Determining the proper interpretation of a statute is a question of law, and this Court reviews questions of law de novo.").

LAW/ANALYSIS
I. Return of the Property (Sheriff's Office Appeal)

The Sheriff's Office argues the trial judge erred in ordering it to return the confiscated clothing and footwear to Farmer, contending it should have been allowed to retain possession of these items because (1) law enforcement agencies may hold allegedly counterfeit goods for purposes other than use in criminal proceedings, (2) inquiry into law enforcement's motives is not proper in a hearing for the return of the confiscated items, and (3) Farmer did not follow the statutory procedure available to him to obtain a forfeiture hearing.1 We disagree.

The confiscated articles at issue in this appeal were seized pursuant to sections 39-15-1190 and 39-15-1195 of the South Carolina Code (Supp. 2009). Section 39-15-1190(B)(1) prohibits a person from "knowingly and wil[l]fully transport[ing], transfer[ring], distribut[ing], sell[ing], or otherwise dispos[ing] of" an item with a counterfeit mark. Section 39-15-1195(A)(1) authorizes the "seizure by and forfeiture to any law enforcement agency" of any property upon the violation of section 39-15-1190, and other paragraphs within this statute describe procedures that a law enforcement agency must observe for storing seized items in its custody. If a seizure is made "without process" pursuant to section 39-15-1195(B), 2 "proceedings pursuant to Section 44-53-530 regarding forfeiture must be instituted within a reasonable time." S.C. Code Ann. § 39-15-1195(C) (Supp. 2009) (emphasis added).

Although section 39-15-1195 does not indicate who is to institute a forfeiture proceeding, section 44-53-530 of the South Carolina Code (2002 & Supp. 2009), which is referenced within paragraph (C) of the statute, describes the procedures required to finalize a forfeiture of property seized in connection with the enforcement of laws regulating controlled substances. These procedures include a petition by the Attorney General, the circuit solicitor, or the appropriate designee, that identifies the seized property and all persons known by the petitioner to have interests in it. Farmer, then, could not have invoked section 39-15-1195(C) to obtain a forfeiture hearing.

Section 39-15-1195(C) also mandates that, when allegedly counterfeit property is seized pursuant to a warrant, "proceedings pursuant to Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time." We believe the South Carolina General Assembly included this requirement in recognition of due process concerns arising when the government deprives a claimant of the use of his or her property. SeeUnited States v. Eight...

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